Religious discrimination victory is a wake-up call

The facts

Mr Khan was a cleaner for NIC Hygiene Ltd in Bradford. He asked his employer if he could use his 25-day annual holiday entitlement, and another week’s unpaid leave, to make a pilgrimage to Mecca. Khan is a Muslim and made the trip to Mecca to perform hajj – one of the five pillars of Islam.

When his employer did not respond to his request, his manager told him he should assume he could go. However, on his return to work, he was suspended and subsequently dismissed. He brought claims of unfair dismissal and religious discrimination.

The issues

A key issue was whether NIC’s treatment of Khan amounted to unlawful discrimination under the Employment Equality (Religion or Belief) Regulations 2003.

These regulations came into force in December 2003 and outlaw discrimination on the grounds of religion or belief in employment. There is no definitive list of religions or beliefs that are covered by the regulations. The tribunals will consider a number of factors when deciding this issue, such as whether there is collective worship, a clear belief system, or a profound belief affecting the claimant’s way of life or view of the world. While it is clear that traditional religions such as Catholicism, Judaism and Islam are protected, there is still uncertainty as to what else is covered.

The decision

A Leeds employment tribunal up-held Khan’s claims and is reported to have awarded him compensation in the region of 10,000.

Lessons to be learned

This is the first successful claim of discrimination on grounds of religion or belief. The tribunal’s decision should not really come as a surprise to anyone. It should, however, act as a reminder to employers of the importance of not treating employees less favourably on the grounds of their religion or belief.

The regulations do not require employers to automatically grant all requests to take extended leave for religious purposes, but employers need to be careful when handling such requests if they are to avoid direct discrimination. For example, they should not refuse individual requests simply because of an employee’s religion or belief. Also be aware of indirect discrimination, such as applying rules of attendance that disadvantage certain groups and which cannot be justified.

To a large extent, it comes down to what is reasonable and practicable, and employers should seriously consider requests to take extended leave for these purposes. The same principles apply to requests to take time off to pray or to attend religious festivals.

There are a number of steps that employers can take if they wish to minimise the risk of claims.

First and foremost, it is essential that employees are provided with guidance and training on what are the new forms of discrimination. Many employees may be unaware of the many different religions and beliefs practised in the UK and the manifestations of different religions and belief systems. In its guidance on how to put the regulations into practice, arbitration service Acas has provided a list of the most commonly practised religions and beliefs in the UK based on the recent census. This is a useful starting point, but no more than that, for employers.

Employees need to be aware that it is unlawful to discriminate on the grounds of religion or belief. Employers should ensure that employees understand their policy on discrimination, their legal obligations and what they should do if they feel they are being discriminated against. Those people responsible for managing, recruiting, training or dismissing employees may need more specialist training, as these are the areas in which claims are most likely to crop up.

Also, it is a good idea for employers to put in place clear procedures for handling requests for leave for religious purposes and ensure all employees are aware of and adhere to the procedures.

Finally, employers should undertake a general review of their policies and procedures to ensure they do not indirectly discriminate against employees of particular religions or beliefs.

Employers should also remember that since 1 December 2003, discrimination on grounds of sexual orientation has also been unlawful, and the principles outlined above in respect of training, policies and procedures, etc, apply equally to this new form of discrimination.

By Sue Nickson, partner and international head of employment law, Hammonds

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